### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-41406 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. JORGE DE LA ROSA-RANGEL, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:11-CR-758-1

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * Pursuant to his guilty plea, Jor g e D e L a Rosa-Rangel was convicted for being an alien present i n t h e United States after having been deported, in violation of 8 U.S.C. § 1326(a) and (b)(1), and received 19 months’ imprisonment and three years’ supervised release. Co n t esting his sentence, De La Rosa contends the district court: erred procedurally by imposing supervised release without explanation or notice of its intent to depart from Gui d e l ine § 5D1.1(c) (supervised release ordinarily not necessary for deportable alien); and imposed U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary28 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-41406 Document: 00512126656 Page: 1 Date Filed: 01/28/2013No. 11-41406

a substantively unreasonable sentence by failing to consider or account for the Guideline. Although post- Booker , the Sentencing Guidelines are advisory only, and

a properly preserved objection to an ultimate sentence is revie w ed for reasonablen e s s under an abuse-of-discretion standard, the district court must still properly calculate the Guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo ; its factual findings, only for clear error. E.g. , United States v. CisnerosGutierrez , 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). Because De La Rosa failed, howe v e r , t o present in district court his contentions regarding his sentence, review is only f o r p l a in error. E.g. , United States v. Dominguez-Alvarado , 695 F. 3d 324, 327 (5th Cir. 2012). For reversible pla i n e r r o r , De La Rosa must show a clear or obvious error that affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). He fails to do so for each issue raised here. Regarding the claimed procedural error, because the district court failed to account for § 5D1.1(c) in imposing supervised release, it committed c l e a r or obvious error. E.g. , United States v. Blocker , 612 F.3d 413, 416 (5th Cir. 2010) (straightforward misapplication of Guidel i n e s c o n s t it u t e s c l e a r o r obvious error). But, De La Rosa fails to show the error affected his s u bstantial rights. Imposition of supervised release u nder § 5D1.1(c) is discretionary, and “departure analysis” is not triggered where, as here, the district court imposes supervised release within the statutory and a d visory Guidelines sentencing

r an g e for th e offen se. Dom in g u ez-A lva ra do , 695 F .3dat 329. T h e distric t c ou rt d eter m in ed su p ervised r elease w as w arr anted a s a n a d d e d m e a s ur e o f d eterr en c e b e c a u s e D e L a Ro s a h ad tw o illeg al-r een try c onvic tion s. U .S .S .G

. § 5D1.1(c) cmt

. 5

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(supervised release may be imposed o n d eportable alien for added measure of deterrence). Regarding substantive reasonableness, De La Rosa contends the court erroneously failed to account for § 5D1.1(c). Again, in the light of the facts and circumstances of De La Rosa’s case, the court imposed supervised release. For the reasons stated above, including the supervised-release term’s being within the statutory and advisory Guidelines sentencing range for the offense, De La Rosa does not show reversible plain error. United States v. Mares , 402 F.3d 511, 519 (5th Cir. 2005). AFFIRMED.

3 Case: 11-41406 Document: 00512126656 Page: 3 Date Filed: 01/28/2013